Judge Jill Karofsky’s electoral victory over incumbent Justice Daniel Kelly last year prompted a post speculating on the impact that this might have during the court’s 2020-21 term.  More specifically, the post focused on 4-3 decisions and the greater importance of “bloc cohesion” for conservative (and liberal) justices in determining the outcomes.  With their number reduced to four, the conservatives could no longer afford to have one of their members stray in contentious cases—while the liberal minority, now three strong, had a more realistic chance to prevail in such cases, if they could maintain firmer unity in their ranks than did their conservative colleagues.[Continue Reading…]

Once again the Gavels of the State Public Defender’s Office ended the season atop the fantasy league standings—despite the effort of the Competition Committee to bolster the other teams by adding more law firms to their rosters for the 2020-21 campaign.  These teams, notably the Affirmed and the Writs, did in fact score much higher than they did in 2019-20, but the Gavels proceeded to win more of their cases this year than they did in any previous season, cruising to yet another league title.  They were led by Dustin Haskell, who contributed 20 points from favorable outcomes in two cases.

Although none of the other teams could match the Gavels’ depth, their rosters included individual firms that turned in impressive performances recognized at this month’s awards banquet.  They included the Wisconsin Institute for Law and Liberty which delivered 22 points to the Writs, followed by the pair of Kasdorf, Lewis & Swietlik (20 points) and Axley Brynelson (19 points) which paced the Affirmed.  Nearly all of the Citations’ scoring came from Troutman Pepper (20 points) and Godfrey & Kahn (18 points), while Husch Blackwell led the Waivers with 18 points.

The following table provides the final totals for each team and every individual law firm.

In this third post assessing the justices’ activities during the now-completed 2020-21 term, we’ll take a look at four topics that attracted attention last year: (1) fractured decisions; (2) frequency of separate opinions; (3) length of decisions; and (4) the number of days between oral argument and decision filing.[Continue Reading…]

These tables are derived from information contained in 51 Wisconsin Supreme Court decisions filed between September 1, 2020, and the end of the court’s term in the summer of 2021.  The total of 51 decisions omits orders pertaining to various motions, petitions, and disciplinary matters involving lawyers and judges. 

Also excluded are (1) Portage County v. E. R. R., which yielded a deadlocked (3-3) per curiam decision, (2) Fond du Lac County v. S.N.W., which was dismissed as improvidently granted, and (3) Original Action petitions which were denied. 

Two cases, both titled Clean Wisconsin, Inc. v. DNR, resulted in separate decisions, each of which is counted here.

Three cases (Sara Lindsey James v. Janel Heinrich; WCRIS v. Janel Heinrich; and St. Ambrose Academy, Inc. v. Joseph T. Parisi) were consolidated and resolved with a single decision—hence they are counted as one case.

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

Now that the justices have issued their final substantive decision of the 2020-21 term, the way is clear for a statistical assessment of their work over the past 12 months.  Today’s post, the first in a series, focuses on the number of decisions filed and the topic of polarization.[Continue Reading…]

No decisions were filed this week (apart from a disciplinary ruling)–hence, no change in the standings.

Let me recommend a provocative article by Skylar Croy (a former law clerk and executive assistant to then-Chief Justice Patience Roggensack): “The Demise of the Law-Developing Function: A Case Study of the Wisconsin Supreme Court,” published in Suffolk Journal of Trial & Appellate Advocacy, vol. 26 (2020-21), issue 1, pp. 1-48.  

The following abstract from the manuscript should make it clear that this is timely and stimulating essay.

“This Article examines the rise in decisions issued by the Wisconsin Supreme Court with no majority opinion. It argues that the rise is partly due to an anti-consensus building philosophy that some conservative justices have adopted. Pursuant to this philosophy, if an opinion does not state almost precisely what the justice believes, the justice cannot join it. Wisconsin’s problem may be indicative of a nationwide trend.

This philosophy is at odds with the law-developing function of the Wisconsin Supreme Court. When a sufficient number of justices take such a stance, the Wisconsin Supreme Court becomes little more than an expensive error-correcting court and that counteracts the purpose of having an intermediate appellate court.

This philosophy also disrupts the balance between conservative and liberal jurisprudence. Because of it, conservative jurisprudence is often left unprotected by the doctrine of stare decisis. Stated otherwise, disagreement among conservative justices results in less law developing in a manner that is generally consistent with their conservative principles. In contrast, liberal justices are not opposed to consensus building, so jurisprudence that they develop is more likely to have precedential value. Additionally, the rise has led some attorneys to ask whether the Wisconsin Supreme Court needs to rethink its position on “minority vote pooling,” which conservative justices have fought against. This Article concludes that conservative justices adopting an anti-consensus building philosophy need to reconsider their positions. It also offers a plethora of ideas for minimizing the number of decisions issued without a majority opinion.”

This week’s pair of decisions—both titled Clean Wisconsin, Inc. v. DNR—benefited three teams.  The Affirmed collected 10 points from Axley Brynelson for a brief, oral argument, and favorable outcome in Clean Wisconsin (2018AP000059), leaving them only 17 points behind the league-leading Gavels, who were idle.

The Waivers also gained 10 points—from Husch Blackwell, which earned five points in each of the two cases for a brief and oral argument.  Joining the Waivers in one of these cases (2016AP1688) were the Writs, who picked up five points from Michael Best & Friedrich for a brief and oral argument.

Click here for the complete, updated standings.

These tables are derived from information contained in 249 Wisconsin Supreme Court decisions that were turned up in a Nexis Uni search for decisions filed between September 1, 1956, and August 31, 1957.  The total of 249 decisions does not include various orders pertaining to petitions, motions, applications, and the like (generally disposed of without oral argument and in short per curiam decisions). 

The following cases were also excluded: Wagner v. Industrial Commission and Nechodomu v. Lindstrom, in which the justices denied motions for rehearing but modified original mandates; De Byle v. Roberts, in which the original mandate was clarified; and In re Integration of the Bar, a per curiam decision regarding rules and by-laws for the State Bar.

State ex rel. Witte v. Board of Election Commissioners and State ex rel. McIntyre v. Board of Election Commissioners were, in effect, consolidated and resolved with a single decision, as was also the case with Wisconsin Power & Light Co. v. Berlin Laundry Company and Wisconsin Power & Light Co. v. Berlin Tanning & Manufacturing Company.  Each pair of cases is counted only once in the following tables.

Eight justices appear in a number of the tables, because Justice Edward Fairchild retired in January 1957 and was replaced by his son, Thomas Fairchild.

The tables are available as a complete set and by individual topic in the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice

This week’s decisions moved the Affirmed into sole possession of second place, thanks to eight points from Axley Brynelson for a brief and favorable outcome in St. Augustine School v. Carolyn Stanford Taylor.  However, the Writs nearly kept pace, collecting five points from the Wisconsin Institute for Law & Liberty (for a brief and oral arguments in St. Augustine School) and one point from Legal Action of Wisconsin (for an amicus brief in State v. George Steven Burch).

Click here for the complete, updated standings.